Grants of representation - Non-Contentious Probate Rules

Learning Outcomes

This article outlines the Non-Contentious Probate Rules governing grants of representation and related estate administration concepts, including:

• Types of grants of representation, distinguishing probate, letters of administration with will annexed, and simple letters of administration, and when each is procedurally appropriate.
• Procedural rules for non-contentious probate applications, from choosing the correct PA1 form to lodging original wills, codicils, and supporting inheritance tax documentation.
• Legal effects and practical consequences of renunciation and reservation of power, including how intermeddling restricts these options.
• Hierarchy of entitlement to apply for a grant under the NCPR and intestacy rules, and how the court may pass over an otherwise entitled applicant.
• Doctrines affecting testamentary gifts, including lapse, anti-lapse under section 33 Wills Act 1837, ademption of specific gifts, and class closing rules.
• Limited and special grants, such as ad colligenda bona, ad litem, double probate, and cessate grants, and the circumstances justifying their use.
• Caveats and citations as procedural tools to block, delay, or compel applications for a grant where entitlement or validity is disputed.
• Evidential foundations for probate applications, with emphasis on statements of truth, affidavits of due execution or plight and condition, and HMRC’s IHT421.
• Consequences of acting without authority, executor de son tort liability, and the protective effect of a grant for dealings with third parties.

SQE1 Syllabus

For SQE1, you are required to understand the process and rules for obtaining grants of representation in non-contentious probate matters, with a focus on the following syllabus points:

• the different types of grants of representation (probate, letters of administration with will annexed, simple letters of administration)
• the procedural hierarchy for entitlement to apply for a grant under the Non-Contentious Probate Rules (NCPR)
• the requirements for renunciation and reservation of power by executors
• the legal effect of a grant and the consequences of acting without one
• the application of doctrines such as lapse and ademption in the administration of estates
• the use of forms PA1P and PA1A, statements of truth, and when affidavits are required
• caveats and citations, including citation to take probate and to accept or refuse a grant
• limited grants (ad colligenda bona and ad litem), double probate and cessate grants
• excepted estates, IHT421 evidence of tax payment, and the Direct Payment Scheme
• court powers to pass over an entitled person under Senior Courts Act 1981, s 116

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the difference between a grant of probate and letters of administration with will annexed?
2. Who is entitled to apply for a grant if the sole executor named in a will has died before the testator?
3. What is the effect of an executor renouncing probate?
4. What happens to a specific gift in a will if the asset is no longer in the estate at death?

Introduction

When a person dies, their estate must be administered by someone with legal authority. This authority is conferred by a grant of representation, which is obtained through procedures set out in the Non-Contentious Probate Rules (NCPR). Understanding the types of grants, the order of entitlement, and the procedural requirements is essential for lawful and effective estate administration.

Most probate applications where entitlement is not disputed are handled as non-contentious business by the Family Division of the High Court (through the Principal Registry and district probate registries). If a dispute arises about admissibility of a document to probate or who should take a grant, the matter becomes contentious and falls within the Chancery Division or, for lower-value estates, the county court. There is no general time limit to apply for a grant, but as a matter of procedure a registry will not issue probate or administration with will annexed less than seven days after death and will not issue administration on intestacy less than 14 days after death.

A probate application may be made personally or through a probate practitioner or solicitor, and now proceeds on a signed legal statement/statement of truth rather than oath. Evidence that any inheritance tax due has been paid must be produced (normally by IHT421 sent by HMRC to the Probate Registry). For excepted estates, reduced reporting applies and the registry may be able to issue the grant without an IHT400.

In limited situations, some institutions may release modest sums without a grant. It is often possible for National Savings & Investments or building societies to pay small balances on production of a death certificate, at the institution’s discretion. Chattels (such as furniture, clothing, and cars) are commonly dealt with on sight of the death certificate. Nevertheless, for most assets, particularly bank accounts and land, third parties will insist on seeing a grant.

Key Term: Non-Contentious Probate Rules (NCPR)
The procedural rules governing applications for grants of representation in uncontested probate cases.

Key Term: grant of representation
A court-issued document authorising a person to collect, manage, and distribute a deceased person's estate.

Key Term: caveat
A notice lodged at the Probate Registry by someone seeking to prevent a grant from issuing, often due to concerns about the will’s validity or the proposed applicant’s entitlement; it lasts up to six months and can be renewed.

Key Term: citation
A formal notice issued through the Probate Registry to compel a person with prior right to take a grant (or to accept or refuse a grant), clearing the way for someone else if they fail to act.

Key Term: excepted estate
An estate that qualifies for reduced IHT reporting requirements so that a full IHT400 account is not needed, though probate still requires confirmation of tax position (typically via IHT421 or HMRC confirmation).

Types of Grants of Representation

There are three main types of grants of representation, each suited to different circumstances depending on the existence and validity of a will and the availability of executors.

Key Term: probate
A grant issued to the executor(s) named in a valid will, confirming their authority to administer the estate according to the will.

Key Term: letters of administration with will annexed
A grant issued when there is a valid will but no executor able or willing to act, appointing an administrator to carry out the will's terms.

Key Term: letters of administration
A grant issued when there is no valid will, authorising an administrator to distribute the estate under the intestacy rules.

Grant of Probate

This is issued when a valid will exists and at least one executor named in the will is able and willing to act. A maximum of four executors can be included on a grant for the same assets, although more can be named in the will. A sole executor can act, even if the estate includes land or there are minor beneficiaries. If a firm is appointed by name, it is the partners at the date of the will who are entitled to act unless the will says otherwise. Where one or more executors do not initially prove, the registry will normally give notice to them if power is to be reserved.

A grant of probate is conclusive, as against third parties, as to the due execution and terms of the will annexed to the grant. If a later will is discovered or the will is found invalid, the grant can be revoked and a fresh grant issued.

Letters of Administration with Will Annexed

If there is a valid will but no executor is able or willing to act (for example, if all named executors have died, lack capacity, or renounce), the court appoints an administrator. The administrator must distribute the estate according to the will. Priority to apply follows the NCPR hierarchy for administration with will annexed, starting with residuary beneficiaries under the will.

Where an executor was a minor at the testator’s death, adults may be appointed to administer for the minor’s use and benefit until majority. If a minor executor later wishes to join administration before completion, a cessate grant or double probate can facilitate this.

Letters of Administration

If there is no valid will, the estate is administered under the intestacy rules. The court grants letters of administration to the person(s) entitled under the statutory order of priority. The order begins with the surviving spouse or civil partner, then issue, parents, whole-blood siblings, half-blood siblings, grandparents, and so on, ending with bona vacantia in favour of the Crown or Duchies where no relatives exist.

Limited and Special Grants

In addition to the main grants, the NCPR recognise limited grants for particular purposes.

Key Term: grant ad colligenda bona
A limited grant authorising a person to collect and preserve the deceased’s assets (and sometimes sell to prevent loss) pending issue of a full grant; it does not authorise distribution.

Key Term: grant ad litem
A limited grant authorising a person to commence or continue litigation on behalf of (or against) the estate; distribution is not normally permitted.

Key Term: double probate
A subsequent grant of probate issued to an executor who did not prove originally (for example, an executor who reserved power later joins the administration alongside the proving executor).

Key Term: cessate grant
A grant issued when a prior limited grant (for example, for use and benefit of a minor) has ceased to have effect, enabling those now entitled (such as the former minor on attaining 18) to continue the administration.

Procedural Hierarchy and Entitlement

The NCPR set out a strict order of priority for who may apply for a grant. This ensures that the person with the closest connection or greatest interest in the estate is given preference.

Key Term: hierarchy of entitlement
The statutory order determining who has priority to apply for a grant of representation.

Key Term: passing over
The court’s power under Senior Courts Act 1981, s 116 to pass over a person otherwise entitled to a grant where it is necessary or expedient to appoint someone else (for example, due to unsuitability or misconduct).

The typical order where there is a will is:

• Executors named in the will
• Residuary beneficiaries (those entitled to the residue under the will)
• Personal representatives of residuary beneficiaries
• Other beneficiaries under the will (e.g., specific or pecuniary legatees)
• Creditors of the deceased

If there is no will, the order is set by the intestacy rules, starting with the surviving spouse or civil partner, then children, parents, siblings, and so on.

When someone with a prior right does not apply and shows no intention of applying, the registry can issue a citation to accept or refuse a grant. A citation can also compel an executor who has intermeddled (and so lost the right to renounce) to take probate or be passed over.

Key Term: intermeddling
Acts amounting to taking on executor functions without authority (for example, collecting assets or paying debts), which may forfeit the right to renounce and may expose the person to liability as executor de son tort.

Where persons are equally entitled (for example, multiple residuary beneficiaries), the registry may grant to any one or more of them, with or without requiring notice to the others. If the person with best entitlement is unsuitable (e.g., lacking honesty or capacity), the court can pass them over under s 116. An attorney may apply on behalf of a person entitled, supported by appropriate authority and any required medical evidence for lack of capacity.

When preparing to apply, the applicant must complete the appropriate form (PA1P for probate or administration with will annexed; PA1A for intestacy), provide a signed legal statement/statement of truth, lodge the original will and codicils (if any), and ensure HMRC has sent IHT421 to the registry or confirm excepted estate status. If the will is physically altered or damaged, affidavit evidence may be required to explain its plight and condition and prove due execution. Affidavits can also be needed to establish the date of an undated will or the testator’s knowledge and approval (for example, where the testator was blind or illiterate).

Worked Example 1.1

A testator dies leaving a will naming two executors, but both have died before the testator. Who is entitled to apply for a grant?

Answer:
The residuary beneficiary (the person entitled to the residue under the will) is next in line to apply for letters of administration with will annexed.

Worked Example 1.2

There is no will. The deceased leaves a civil partner and two adult children. Who is entitled to apply for a grant?

Answer:
The civil partner has the best right to apply for letters of administration. If they do not apply, the children are next in line under the intestacy hierarchy.

Worked Example 1.3

A beneficiary concerned about the validity of a late-stage handwritten codicil wants to prevent a grant issuing to the named executor. What step should be taken?

Answer:
Lodge a caveat at the Probate Registry to prevent issue of the grant while validity is investigated. If needed, proceed with contentious probate to resolve admissibility.

Worked Example 1.4

An executor pays some estate debts and closes a savings account before applying for probate, then seeks to renounce. Can they renounce?

Answer:
Likely not. Those acts amount to intermeddling, which generally forfeits the right to renounce. A citation to take probate can be issued to compel them to proceed, or the court may pass them over.

Renunciation and Reservation of Power

Executors named in a will may choose not to act. The NCPR provide two mechanisms:

Key Term: renunciation
The formal process by which a named executor permanently gives up the right to act as executor, typically by signing and filing a written renunciation at the registry.

Key Term: reservation of power
A mechanism allowing a named executor to step aside temporarily, retaining the right to apply for probate later if needed.

• Renunciation: An executor who does not wish to act must sign a formal deed or written renunciation and file it with the Probate Registry. Renunciation is generally irrevocable, and the right to act is lost and cannot be reclaimed except with court permission. Crucially, renunciation is unavailable if the executor has intermeddled in the estate, in which case they may be cited to take probate.

• Reservation of power: If there are multiple executors, one may reserve power, allowing the others to act. The reserving executor may later apply to join the administration, and the registry can issue a form of double probate to include them alongside the original proving executor.

Key Term: executor de son tort
A person who intermeddles with a deceased's estate without authority, and is treated as an executor for liability purposes.

Where the only executor lacks capacity or is a minor, the registry can issue a grant for the use and benefit of that person (to an adult) until they acquire capacity or reach 18. If the administration is ongoing when the minor attains majority, a cessate grant or double probate enables them to take up the role.

Worked Example 1.5

A will appoints three executors. One wishes to act, one is undecided, and one does not want to be involved. What are their options?

Answer:
The executor who does not want to act may renounce. The undecided executor may reserve power, allowing the willing executor to obtain probate and administer the estate. The reserving executor may later apply to join if needed (by double probate).

Effect of a Grant and Acting Without Authority

A grant of representation provides legal protection to those dealing with the estate. Banks, asset holders, and buyers of estate property can rely on the grant as proof of authority. A grant is conclusive evidence of the due execution and terms of the will (if any) as against third parties. If a grant is later revoked (for example, due to discovery of a later will), property transferred under the grant may need to be returned or traced, unless it has passed to a bona fide purchaser for value without notice.

If someone acts without a grant, they may be personally liable for any loss or unauthorised dealings. Intermeddling may expose them to the liabilities of an executor de son tort and can affect procedural rights (e.g., removing the ability to renounce).

In practice, there are mechanisms to overcome funding obstacles before the grant. HMRC’s Direct Payment Scheme allows inheritance tax to be paid directly from the deceased’s bank or building society accounts using IHT423, enabling HMRC to provide IHT421 to the Probate Registry and permit issue of the grant. In exceptional cases, HMRC may allow a grant on credit, but only where funding is impossible or excessively difficult despite reasonable efforts; even then, personal representatives are expected to pay as much of the tax as possible before the grant.

Doctrines Affecting Gifts in Administration

Doctrine of Lapse

If a beneficiary named in a will dies before the testator, the gift to that beneficiary usually fails (lapses) and falls into residue. However, section 33 of the Wills Act 1837 provides an exception: where a will makes a gift to the testator’s child or sibling and that beneficiary dies before the testator leaving issue, the gift will, unless the will expresses a contrary intention, pass to the beneficiary’s issue by substitution.

Doctrine of Ademption

If a will makes a specific gift of an asset, but that asset is not in the estate at death (for example, it was sold or given away), the gift is adeemed and fails. Ademption reflects the principle that a will speaks from death: unless the will shows a contrary intention, references to property are construed as references to property owned at the date of death and identifiable in the estate.

Key Term: ademption
The failure of a specific gift in a will because the asset is no longer part of the estate at death.

Key Term: lapse
The failure of a gift in a will because the beneficiary has died before the testator.

Class gifts and class closing rules can affect distribution and timing for gifts to groups (e.g., “to the children of X”). As a general approach, a class closes when at least one beneficiary has a vested interest, excluding persons not then living, though specific wording and contingencies can alter that outcome. The rules aim to allow personal representatives to identify beneficiaries and distribute without indefinite delay.

Worked Example 1.6

A will leaves "my car" to a friend, but the testator sold the car before death. What is the effect?

Answer:
The gift is adeemed. The friend receives nothing, as the car is no longer part of the estate.

Worked Example 1.7

A will leaves “£10,000 to each of the children of Zebedee who attain the age of 18.” None of Zebedee’s children had reached 18 by the testator’s death, but two were living aged 12 and 15. Who takes?

Answer:
The class closes at the testator’s death for fixed-amount gifts expressed “to each,” and includes only children then living who later reach 18. The two living children will take £10,000 each on reaching 18; children born after the testator’s death do not join the class unless the will provides otherwise.

Worked Example 1.8

A will gives “£5,000 to my sister Mary,” but Mary died before the testator leaving two children. Does the gift lapse?

Answer:
Section 33 of the Wills Act 1837 applies because the gift is to a sibling. In the absence of contrary intention, the gift passes by substitution to Mary’s issue equally.

Partial Intestacy

If a will does not dispose of the entire estate, or if a gift fails and there is no substitution, the undisposed portion passes under the intestacy rules. The executor appointed by the will still usually applies for and takes probate and administers the whole estate, including the intestate residue, unless no executor is able or willing to act. Separate letters of administration are only needed where there is no proving executor and administration must be obtained for the will part and the intestate part accordingly.

In intestacy, distribution follows the statutory order in s 46 of the Administration of Estates Act 1925, including the statutory trusts for issue. A surviving spouse or civil partner’s entitlements depend on whether the deceased left issue (for example, the fixed statutory legacy plus shares of residue where issue survive). Where the matrimonial home is part of the estate, a surviving spouse or civil partner may have rights to an appropriation of the dwelling under the relevant statutory provisions, subject to valuation and fairness.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The three main types of grants of representation: probate, letters of administration with will annexed, and simple letters of administration.
• The Non-Contentious Probate Rules set out a strict order of entitlement for applying for a grant; executors have priority, followed by those beneficially entitled.
• Executors may renounce or reserve power; renunciation is permanent (subject to court), reservation allows later joining, often via double probate.
• Intermeddling prevents renunciation and may trigger citation to take probate.
• Limited grants include ad colligenda bona and ad litem for preservation or litigation, and cessate grants where a limited grant ceases.
• Acting without a grant may result in personal liability as executor de son tort; a grant protects dealings with third parties and is conclusive as to will terms.
• Procedural foundations include PA1P/PA1A forms, statements of truth, lodging original wills and codicils, and IHT evidence (IHT421 or excepted estate status).
• Caveats can block grants; citations can clear off persons with prior rights or compel action.
• The doctrines of lapse and ademption determine whether gifts in a will fail; s 33 of the Wills Act 1837 provides anti‑lapse for gifts to children or siblings.
• Partial intestacy arises if the will does not dispose of the whole estate; executors usually administer both testate and intestate parts under one probate.

Key Terms and Concepts

• grant of representation
• probate
• letters of administration with will annexed
• letters of administration
• Non-Contentious Probate Rules (NCPR)
• hierarchy of entitlement
• renunciation
• reservation of power
• executor de son tort
• ademption
• lapse
• excepted estate
• caveat
• citation
• passing over
• grant ad colligenda bona
• grant ad litem
• double probate
• cessate grant
• intermeddling